Bombay High Court
Anantrao Gyanaba Pawar vs The State Of Maharashtra on 15 October, 2010
Bench: P. B. Majmudar, Anoop V.Mohta
1 APEAL 651 of 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APEAL NO.651 OF 1990
1. Anantrao Gyanaba Pawar,
Aged 60 years.
2. Sou. Savitribai Anantrao Pawar,
Aged 55 years.
(died during the pendency of appeal).
3. Mrityanjay @ Sambhaji Anant Pawar,
Aged 32 years.
4. Sau.Vijaya Vishwasrao Salunkhe,
Age 27 years.
All Residing at 44, Shukrawar Peth,
Satara. .....Appellants
V/s.
The State of Maharashtra ..... Respondent
WITH
CRIMINAL APPEAL NO.884 OF 1990
The State of Maharashtra ..... Appellant
V/s.
1. Anantrao Gyanaba Pawar,
Aged 60 years.
2. Sou. Savitribai Anantrao Pawar,
Aged 55 years.
(died during the pendency of appeal)
3. Mrityanjay @ Sambhaji Anant Pawar,
Aged 32 years.
::: Downloaded on - 09/06/2013 16:32:27 :::
2 APEAL 651 of 2010
4. Sau.Vijaya Vishwasrao Salunkhe,
Age 27 years.
All Residing at 44, Shukrawar Peth,
Satara. .....Respondents
Ms.V.V.Thorat with Mr.Ravi Kadam, for the appellants in Appeal No.651 of
1990 and for the respondents in Appeal No.884 of 1990.
Mrs.V.R.Bhosale, APP, for the appellant in Appeal No.884 of 1990 and for
the respondent in Appeal No.651 of 1990.
CORAM : P.B.MAJMUDAR &
ANOOP V. MOHTA, JJ.
DATE : 15th OCTOBER, 2010
ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) :
1. The appeal No.651 of 1990 is directed against the judgment
and order of conviction recorded by the Additional Sessions Judge, Satara,
dated 10-09-1990, by which the learned Additional Sessions Judge
convicted all the accused under Section 235(2) of the Code of Criminal
Procedure, for the offence punishable under Section 498(a) read with
Section 34 of Indian Penal Code and sentenced them to suffer rigorous
imprisonment for three years and a fine of Rs.1,000/- was imposed on
each of the accused and in default to suffer rigorous imprisonment for
three months. Similarly, the accused have also been convicted under
Section 306 read with Section 34 of Indian Penal Code, for which also
same sentence is awarded.
2. Being aggrieved by the aforesaid order of the learned
3 APEAL 651 of 2010
Sessions Judge, this appeal is filed by the appellants/accused. It is pointed
out that during the pendency of this appeal, the original accused No.2
Savitribai Anantrao Pawar has died. The learned APP has also confirmed
the said aspect. Accordingly, the appeal stands abated as against
appellant/accused No.2. Now, the appeal is required to be considered in
connection with appellant/accused Nos.1, 3 and 4 only. The State has
also filed an appeal bearing No.884 of 1990 for enhancement of sentence
of the accused.
3. The appellant/accused No.1 is the father of
appellant/accused Nos.3 and 4. As pointed out earlier, appellant/accused
No.2 i.e. mother-in-law of the deceased, has already died during the
pendency of the appeal.
4. The prosecution case in brief, is as under : -
The marriage of Sushma (deceased) with accused No.3 was
solemnized in the year 1987. The complainant Vithoba Gangadhar Surve,
father of the deceased, had given various household items to her daughter
at the time of marriage, including the gold ornaments. Initially, for some
time, the deceased was treated with love and affection after the marriage.
Thereafter, accused started illtreating the victim by demanding certain
items, which ultimately were given by the brother of the deceased. It is
the case of the prosecution that on 14-06-1989 at about 8.30 a.m., the
4 APEAL 651 of 2010
deceased committed suicide by pouring kerosene on her body and set
herself ablaze on fire. The deceased thereafter, was taken to Civil
Hospital, Satara. Mr.Eknath Anpat, Police Head Constable, recorded the
dying declaration of the deceased at about 9.00 a.m. The Executive
Magistrate was called by the doctor, who recorded her second dying
declaration at about 10.00 a.m. Thereafter, on the same day, PSI Dalvi
recorded dying declaration of the deceased at 4.00 p.m. Accordingly, PSI
Dalvi registered the Medico Liego case bearing No.1827 at Satara City
Police Station and started the investigation. The father of the deceased
lodged a complaint on the same day and it was registered as C.R.No.257
of 1989. On the next day, the victim Sushama died at the hospital. On
completion of investigation, PSI Dalvi submitted chargesheet before the
Chief Judicial Magistrate and the accused persons committed for trial to
the Sessions Court, Satara.
5. On 13-08-1990, the Additional Sessions Judge framed the
amended charge against the accused persons, as under -
1. On 14-06-1989 at about 8.30 a.m., Sau.Sushama
Mruttyanjaya @ Sambhaji Pawar, aged 22 years, committed
suicide by pouring keresone on her person in the house
bearing Municipal House No.44, Shukruvar Peth, Satara
and that you accused No.1 and 2 being her father-in-law
and mother-in-law respectively, as well as accused No.3
being her husband and you accused No.4 being sister of
accused No.3, in furtherance of common intention, abetted
the commission of the said offence of committing suicide
5 APEAL 651 of 2010
resulting into act of burning herself by pouring kerosene on
her person and by subjecting the said Sau.Sushama to
cruelty harassment and illtreatment and thereby committed
an offence punishable under Section 306 read with Section
34 of the I.P.C. And within my cognizance.
2. Secondly, that you accused No.1 and 2 being her
father-in-law and mother-in-law respectively, of the
deceased Sau.Sushama Mruttanjay @ Sambhaji Pawar, and
you accused No.3 being the husband of the deceased
Sushama and as such, you accused Nos.1, 2 and 4 being the
relative of the deceased Sushama, in furtherance of
common intention, prior to 14th June, 1989 subjected the
deceased Sushama Mruttyanjay @ Sambhaji Pawar, to
cruelty, amounting to willful demand, which was of such a
nature as was likely to drive the deceased Sushama to
commit suicide by burning herself by pouring kerosene and
subjected the said deceased Sushama, to cruelty,
harassment and illtreatment with a view to coercing her or
any person related to her to meet many unlawful demand
for any property or valuable security or on account of
failure by her or any person related to her, to meet such
demand and thereby committed an offence punishable
under Section 498(a) read with Section 34 of the I.P.C., and
within my cognizance.
6. The accused did not plead guilty to the aforesaid charges.
The learned Additional Sessions Judge recorded the evidence adduced by
the prosecution and on conclusion of the trial, passed an order of
conviction, which order is challenged by the appellants/accused in appeal
No.651 of 1990. The State has also filed an appeal bearing No.884 of
1990 for enhancement of the sentence.
7. On behalf of the prosecution, ten witnesses were examined.
Mr.Ramesh Kashinath More was examined as (P.W.1) who is the Panch
6 APEAL 651 of 2010
witness. As per the evidence of the said witness, on 14-06-1989, he was
called by the police to act as a Panch at 10.00 a.m. At that time, other
Panchas namely Pradeep Vhatkar was also present. They were called in
the house of the accused person. The said witness has stated in para 2 of
the examination-in-chief that on the southern side corner of the room,
there is a place for offering prayers. One wall shelf in which the family
utensils were kept, was also found in the room. This shelf was on the
southern side wall. One stove and one pot containing hot milk, were kept
inside this wall shelf. One stove which was cleaned and having carried the
name, "given to Sushma as Andan" was found inside the room. One tin
containing kerosene was found near the stove. The above stove (Article A)
was identified by the said witness as the same before the Court. The stove
(Article A) was tried to be operated by the police in his presence. The
stove was found in working condition. The tin (Article B) containing
kerosene, is also identified by the said witness which was shown to him.
8. One written paper was found below the mattress by the
police, which carried the date as "13-06-1989" and had carried the words
on the top of it as "Shri Sainath Prasanna". The last line in said chit reads
as "vkiyh lq"kek LoxZoklh bkkyh" (Your Sushama has died). During the
course of the evidence, the said chit was shown to the said witness and he
has stated that it is the same letter/chit which was recovered at the time of
7 APEAL 651 of 2010
panchanama and it carries his signature and other panchas. The said chit
is marked as Article C.
9. In the cross-examination, he denied the suggestion that one
cooker was found on the northen side of the southern wall shelf. In the
cross-examination, he has stated that the work of drawing panchanama
was continued for about four hours and no other persons were present at
the time of drawing the panchanama, except himself and other police staff.
The witness denied the suggestion that he himself did not lift the mattress
and pillows. The drawn panchanama was also placed on record at Exh.
32. The panchanama described the place wherein the incident in
question had occurred. In the Panchanama, it is mentioned that near the
bathroom beside the south north wall and its centre, there is a bench,
having iron angles and on its top, there is a plank on which there are two
big pots of water called as Handa. There is a steel barrel of water kept on
Handas and and below the bench, there is a red colour kerosene tin of five
liters, having a handle to catch. As per the Panchanama, there is 1.5 liters
kerosene in the tin. Besides the tin, there was a brass stove on which the
name of Sau.Sushama has been inscribed. There is about ½ to ¾ liters of
kerosene in the said stove and it was in good condition and gets no smell
of kerosene. The English version of the Panchanama states that kerosene
8 APEAL 651 of 2010
appears to have been scattered on the floor of the said room and it is
smelling as kerosene. However, the learned counsel appearing for the
appellants pointed out that there is a mistake in the translation and as per
the original Panchanama which is in Marathi, it contained the word
"spread of water" and according to her, kerosene as such was not found,
though smell of kerosene as per the Panchanama, was coming. As per the
Panchanama, water also appears to have been scattered there. The alleged
chit written by the deceased, which can be said to be suicidal note, was
seized during the panchanama.
10. As per the Panchanama, the chit bears the english date on
the first page and it is written as "13-6-1989" and below this date, it has
also written as "Tuesday" in Marathi script. There are contents such as
"Shri Sainath Prasanna" in red line in middle part . The chit commences
with the words "Last Namaskar to dear Maternal uncle and maternal aunt
i.e. (ekek vkf.k ekeh). It is pointed out during the course of arguments
that the deceased used to call her father and mother as (ekek vkf.k ekeh),
which fact is not in dispute. All the three pages of the said chit have been
signed by the panchas and was seized by the police which was kept in
envelope. Certain photographs were also seized during the panchanama.
As per the Panchanama, brass stove having kerosene in it, kerosene tin
without cap, with other articles have been seized by the police.
9 APEAL 651 of 2010
11. The prosecution has examined Dr.Avinash Dattatray
Ashtekar (P.W.2) at Exh.33. It has come in the evidence of P.W.2 that he
was on duty on 14-06-1989 and one Sushama was brought to the Civil
Hospital by Mr.Sanjay Pawar. The history was narrated to him by the
relatives of the patient regarding burning injuries received by the patient
due to burning stove at about 8.00 a.m. He has examined the condition
of the patient and patient had 100% burn injuries. But, the heirs on the
head were not totally burnt. He has stated that the general condition of
the patient was poor and pulse were weak. She was restless and panic,
but she was conscious. She was not in a position to understand questions
put to her. As per the evidence of the Doctor, he injected bottles of ringer
lactate injection, tetanus toxide injection, anti-tetanus serum injection
ampicillion (500 mgs). Doctor has further stated that the condition of the
patient deteriorated as the time progress. He further stated that at about
11.00 a.m., injection fortwin was given and the said injection was rather
more analgesic than sedative and the same is effective for 2-3 hours.
12. The Doctor (P.W.2) further stated that PSI Dalvi recorded
the dying declaration at about 4.00 p.m. on 14-06-1989 in his presence.
At that time, the patient was physically conscious and mentally sound.
One chit was produced by the patient before PSI Dalvi in his presence and
he put his signature and wrote necessary endorsements in his writing on
10 APEAL 651 of 2010
the dying declaration and the same bears his signature. It is produced on
record and marked as Exh.34. The deceased died on the next day on
15-06-1989 at 2.00 p.m. He carried out the post-mortem of the dead
body.
13. In the cross-examination, he admitted that he did not tell
the Police Head Constable who recorded the dying declaration at about
9.00 a.m., that the patient was not in a position to understand the things
properly (this was in connection with the first dying declaration when the
patient was brought to the hospital). The Doctor has stated that the
Nayab Tahasildar, Satara, was present in the hospital at about 10.00 a.m.
and he was informed by the police to record the dying declaration of the
patient. The Executive Magistrate after consulting him, recorded the
dying declaration of the patient at about 10.00 a.m., in the presence of the
doctor. The doctor has further stated that the relatives of the patient had
visited the hospital from 10.00 a.m., to 4.30 p.m. He stated that the
condition of the patient went on deteriorating after 6.30 p.m. The mouth
and throat, had received 9% burns and patient was in a position to give
answers. She could hear what they were talking. Patient had no burns on
her ears and she used to give answers to the questions put to her.
14. The statements of the deceased recorded on 14-06-1989 at
4.00 p.m., find place at Exh. Nos.34 and 73. In her said statements, the
11 APEAL 651 of 2010
deceased stated that in the morning, she was brought in the hospital for
medical treatment, as she tried to burn herself by pouring kerosene on her
person. She has stated that it is not correct to say that she received
injuries in view of aggrieved flame of stove. In the said statement, she has
stated that at the time when the said dying declaration was recorded, she
was in pain and could not explain properly what she wanted to state.
But, her husband, father-in-law, mother-in-law and sister-in-law were
illtreating her without any cause and was beating her from time to time.
Her statement which is recorded reads as under : -
"I, Sau.Sushma Mrutyunjay Pawar, age 22, Occu :
Household, r/o 44, Shukrawar Peth, Satara :
"Now present in Civil Hospital, Satara, states that
today, in the morning I was brought in hospital for medical
treatment as tried to burn myself by pouring kerosene on
my person. It absolute false that I have stated before police
and Magistrate that by aggrieved flame of stove it was
burned. That time, it was paining to my person hence I
cannot explain, what I have stated. But my husband, father-
in-law, mother-in-law, sister-in-law were illtreating me
without any cause and my husband was beating me from
time to time. Now I am in absolute conscious and just what
I have stated is correct. Before setting fire to me by this
way myself, one chit which is written in the name of my
father is kept under the Gadi, is written by me. Now the
chit which was shown to me by police is the same and
written by me. It's contents are correct. My husband,
sister-in-law Vijaya, parents-in-laws were illtreating me
from time to time, I could not bare this illtreatment, hence I
tried to set fire myself and tried to commit suicide.
Sd/-
Sau.Sushma Mrutyunjay Pawar
12 APEAL 651 of 2010
Today, in the morning I cannot sign on my
statement because at that time my hands and person was
paining, also my mental condition was not good. So I have
affixed my thumb impression on it. Now, my mental
condition is good and hence, I have signed on it.
Sd/-
Sau.Sushma Mrutyunjay Pawar
15. The prosecution has examined Mr.Shankar Laxman Chavan
(P.W.3) at Exh.36. He was the panch witness. On 15-06-1989, he was
called by the police in police station along with other panchas Mr.Krishna
Ghorpade. One survey was present at that time at the police station and
one chit was lying on the table. The chit was attached in presence of said
panchas. The said witness confirmed the contents of the said chit at the
time of evidence. The said panchanama is marked as Exh.37.
16. So far as the said Panchanama is concerned, it was drawn
on 15-06-1989, which is on page 239. The said panchanama was proved
during the course of examination-in-chief of the said witness. As per the
said panchanama, Mr.Nitin Surve told them that his sister i.e. Sushama,
was complaining about illtreatment physical and mental and in February
1989, she had came to her maternal house because of the same. At that
time, she informed about the chit which was given to her by her husband,
which she gave to his brother. The contents of the said chit are as under :
13 APEAL 651 of 2010
-
"I will not touch you a henceforth"
17. The translated copy which is given to us is not proper.
However, the learned counsel for the appellants states that what is written
in the chit is "I will not touch you henceforth". The said chit is signed by
the husband of the deceased. As per the said panchanama, one joint page
of notebook is also seized, which is in connection with the handwriting of
the deceased.
18. The prosecution has also examined Mr.Nitin Vithoba Surve
(P.W.4), brother of the deceased. He has stated that they used to call their
father as 'Mama' and mother as "Mami'. At the time of marriage of his
sister, they had offered six tolas of gold in the form of four Bangles, ear
rings, ear rings, Mangal sutra, two golden rings, one for the bride and
another for the bridegroom. It is stated that utensils were also given at
the time of marriage, including stove, pressure cooker. The witness has
shown the stove (Article A) and he identified to be the same stove, which
they had given to deceased at the time of marriage. As per the evidence of
the said witness, accused persons treated the deceased with love and
affection and with hospitality for about 5-6 months after the marriage.
Thereafter, the accused started harassing, illtreating the deceased. In para
No.8 of the examination-in-chief, the said witness has stated that accused
14 APEAL 651 of 2010
No.3, husband of the deceased, had illicit relations with other lady and
therefore, he used to return late in the night. He further stated that when
his sister made inquiries with accused No.3 for his late arrival in the
house, the accused No.3 replied that for the purpose of rehearsal of
drama, he was required to stay there and hence, accused No.3 used to
come late at night. The said witness further stated that accused No.3
used to get annoyed and used to asked her sister Sushma that what
authority she has got to inquire about his late arrival at the house and he
used to beat her. The witness stated that this aspect was informed to him
by the deceased whenever she used to come to her maternal house and
thereafter, accused No.3 continued to harass and illtreat the deceased.
19. It has come in the evidence of P.W.4 that in the month of
December, 1987, the accused No.3 started demanding Godrej Cupboard
from his sister and on this count, she was being harassed and illtreated by
the accused No.3. He further stated that accused No.3 used to assault the
deceased in order to fulfill his demand of Godrej cupboard. He stated that
he personally purchased a steel cupboard for Rs.2,300/- for Sushma, in
view of the demand made by accused No.3. After getting the said
cupboard, for few days, the accused behaved properly with the deceased,
but again started harassing her. He further stated that in the month of
March 1988, the deceased attempted to commit suicide by consuming
15 APEAL 651 of 2010
'Dettol' at about 8.00 a.m., and on the said date, the brother of accused
No.3 informed them on telephone about the said aspect. He further stated
that Sushma was admitted in a civil hospital. On inquiry, Sushma told
that she was being subjected to cruelty, harassment and illtreatment by the
accused and therefore, she tried to commit suicide. At that time, no police
complaint was filed keeping in view the future of Sau.Sushma. She was
then brought to their house, wherein she stayed for 5-6 days. Thereafter,
his father and mother accompanied his sister to the house of accused No.3.
He further stated that their parents requested the accused Nos.1 and 2 to
treat Sushma with love and affection and not to harass and illtreat her.
The accused No.1 and 2 asked his parents not to visit their house in future
and accused No.3 threatened to Sushma that he would kill her if her
parents again visited their house. He stated that thereafter, his parents did
not visit the house of the accused.
20. Mr.Nitin Vithoba Surve (P.W.4) further stated that he used
to visit his sister's house occasionally. He was told by the deceased that in
March 1988, the accused persons made a demand of tape-recorder, which
demand was made after 5-6 months after Sushma consumed 'Dettol'.
Accordingly, he purchased a tape recorder from 'Prakash Radio, Satara', for
Rs.1,350/-, for which a receipt was produced on record.
21. On 24-08-1988, there was a family function in their house
16 APEAL 651 of 2010
in connection with birth day of Chetan Pawar and on that day, the tape-
recorder was handed over to the accused No.3. A photograph in this
behalf, was also produced on record which is at Exh.40. The said witness
further stated that accused No.3 wanted to purchase a plot situated near
his house, for which he demanded gold bangles from his sister. At that
time, the said witness had visited the house of his sister and was requested
by his sister to convince accused No.3 not to sale the bangles. Thereafter,
he told his sister that the family members of accused No.3 did not like his
advise and told her to convince the accused No.3 on her own accord. He
further stated that subsequently, his sister expressed her unwillingness to
handover her bangles to accused No.3, which resulted in further
harassment to her on the part of accused Nos.1, 2 and 4 at the instance of
accused No.3. The said witness further deposed that this aspect was told
to him by his sister. He further stated that after taking permission from
accused Nos.1 and 2, he took his sister to their house and she stayed with
them for 5-6 days. Thereafter, accused No.3 came to their house and told
his sister to come back to the matrimonial house. At that time, accused
No.3 executed a writing stating that "he will not touch you in future
(meaning thereby that he will not beat her in future). The said writing
was handed over by the deceased to the said witness, which was later on
produced at the police station after the death of Sushma and the said chit
17 APEAL 651 of 2010
was seized by the police in presence of panchas (The contents of the said
chit, is discussed in the evidence of Panch witness, as pointed out above).
22. It has further come in the evidence of P.W.4 that the accused
No.3 and the deceased Sushma started residing separately in one room of
the same house, since 4-5 months prior to the incident in question. The
accused No.3 thereafter, started demanding gas furnace. Since he was
having extra gas connection in his name, he handed over the same along
with a cylinder to accused No.3 and his sister. He further stated that on
12-06-1989, the cylinder which was handed over to accused No.3 became
empty and therefore, her sister Sushma requested him to replace the same
with a new one. He went to Bharat Gas Agency, Satara and purchased a
cylinder from Bhurke and Sons, for which a receipt dated 12-06-1989, was
produced on record which was issued in his name. Thereafter, he went to
Bombay on 12-06-1989 at night and returned back to Satara on
14-06-1989, at about 9.00 a.m.
23. He has further stated in the evidence that when he was
coming to his house, his cousin brother Vijay informed him that Sushma
had received burn injuries and therefore, they went to civil hospital to see
Sushma. On 15-06-1989, he visited the hospital at about 8.00 a.m., and
inquired with her sister. Her sister told him that she was subjected to
cruelty, harassment and illtreatment by the accused Nos.1 to 4 and she felt
18 APEAL 651 of 2010
that there was no point in living such type of life and therefore, she
committed suicide by setting her on fire. He further stated that Sushma
died at about 2.00 p.m., on 15-06-1989. He stated that he can identify
the handwriting of Sushma if it shown to him.
24. In the cross-examination, he stated that the marriage
between his sister and accused No.3 was a arranged/settled marriage. He
denied the suggestion that accused No.4 is residing at Bombay since her
marriage. The said witness admitted that his sister was initially treated
well for 5-6 months since the marriage. He also admits that he has not
stated in his statement before the police that the accused had illicit
relations with other lady. He however, denied the suggestion that he is
deposing falsely that the deceased was subjected to cruelty, harassment
and illtreatment by the accused persons. The witness further admits that
he has not stated in his statement recorded by the police that Sushma
informed him in the month of December 1987, that accused No.3
demanded the steel cupboard and that Sushma told him that she would be
subjected to cruelty and harassment, if the demand of the accused No.3 is
not fulfilled. He further stated in the cross-examination that it is not true
to suggest that he is deposing falsely that Sushama had consumed Dettol,
though, he has not specifically stated in the statement recorded by the
police that Sushma had consumed Dettol. The witness produced a chit
19 APEAL 651 of 2010
before the police which was handed over to him by the deceased Sushma,
which chit was given by accused No.3 to Sushma. The witness further
admits that it is true that in the month of March 1988, Sushma did not tell
him that accused No.3 was demanding tape recorder. He has also deposed
that it is also true that he did not make inquiry with Sushma while she was
in the hospital and his parents had already reached civil hospital in the
morning. In the cross-examination, he further states that he had no talk
with his father and mother in the hospital. He admits that on 14-06-1989,
he had visited the hospital and had not made any inquiry with his sister.
He denied the suggestion that Sushma being only sister in their house, was
brought up and nourished as per her own likings, wish and desire. He also
denied the suggestion that Sushma was adamant.
25. In order to prove its case, the prosecution has also
examined Mr.Jaisingrao Sadashivrao Landge (P.W.5). He was examined as
handwriting expert, as he had given handwriting opinion about the
handwriting of the deceased. In examination-in-chief, he has stated that
he has passed B.Sc with Chemistry in 1st Class from Shivaji University and
has joined the profession in the year 1979 as an Assistant State Examiner
of documents at Nagpur. He has given particulars about the training
which he has received. He stated that he has received a letter bearing No.
273 of 1989 dated 29th June, 1989 sent by Inspector of Police, Satara, in
20 APEAL 651 of 2010
C.R.No.257 of 1989. The said letter was shown to the witness and he
identified the same. He further stated that along with the said letter, he
has received Article A to G in a sealed packets for examination. As per the
evidence of the said witness, he examined Article A and compared with
the same with the disputed signature. The details in this regard have been
given in Para 3 and 4 in the examination-in-chief of this witness.
Accordingly, he has submitted his opinion vide Exh.49 and its contents are
true and correct. It is required to be noted that nothing substantial has
come out in the cross-examination of the said witness. As per the opinion
given by the said witness (Exh.49), the documents have been thoroughly
examined by him. In its report, the said witness has opined as under : -
"2. The person who wrote the red-enclosed writings and
signatures marked Exh.S-1 to S-9, also wrote the red-enclosed
writings and signature marked Exh.Q-6, Q-7 and Q-6(a).
3. The red-enclosed writings marked Exh.Q-1 to Q-5 and N-1
to N-6 when compared interse it is found that these writings are
written by one and the same writer.
4. The pages on which the red-enclosed text marked Exh.Q-1
to Q-5 is written are the parent papers of pages numbered 99 to
104 of the Note Book marked Exh.F.
5. No definite opinion can be express regarding the writing
instrument (i.e. Ball Pen).
26. The prosecution has also examined Gita Laxman Pawar
(P.W.6). She stated that complainant is a real brother of her mother. She
stated that she and Sushma were in same class and standard till 10th and
21 APEAL 651 of 2010
Sushma was elder to her by six months. She stated that after marriage of
Sushma, she used to meet her by visiting her house for gossiping since
they were of the same age. In the cross-examination, she categorically
stated that deceased used to tell her that her husband used to tease her on
minor things and he had illicit relations with other lady. She further
stated that she had seen the accused No.3 moving with another lady on
one or two occasions. The accused No.3 got annoyed and assaulted the
deceased, which fact was told to the said witness by the deceased. The
witness further stated that deceased Sushma used to attend Jadhav
Tailoring Class, which is situated near New English School. She is
acquainted with the handwriting of the deceased. The accused No.3 was
demanding steel cupboard and tape-recorder. The witness stated that in
the past, Sushma tried to commit suicide by consuming poison as she was
annoyed due to harassment, illtreatment and cruelty being subjected to
her by accused Nos.1 and 4. She was admitted in the Civil Hospital,
Satara and then brought back to the house of his father. Subsequently, the
parents of the deceased requested accused No.3 to treat Sushma properly
and they did not file any police complaint considering the future of
Sushma. She further stated that at that time, accused Nos.1 to 3 told the
parents of the Sushma not to visit their house in future. Thereafter, the
parents of Sushma did not visit the house of accused Nos.1 to 3 and only
22 APEAL 651 of 2010
Nitin used to visit the house of Sushma. She further stated that deceased
Sushma used to tell her everything about the illtreatment, harassment at
the hands of accused persons. In the cross-examination, the witness
admits that she has not stated before the police that the chit had carried
the contents as "I will not touch you henceforth".
27. Mr.Rajendra Krishnarao Jadhav (P.W.7) was also examined
by the prosecution to prove the handwriting of the deceased and to lend
credence to the fact that deceased used to attend tailoring class. In
examination-in-chief, the witness stated that he is running a tailoring class
since 1985 and deceased used to attend her tailoring class.
28. The prosecution has examined Mr.Eknath Kesharvao Anpat
(P.W.8). In examination-in-chief, the said witness stated that he was
attached to Police Chowky of Civil Hospital, Satara, from 17-07-1987 to
29-11-1989 and on 14-06-1989, the In-charge Medical Officer informed
him that one lady Sushma was admitted in the hospital, having 100%
burns. He stated that accordingly he informed the City Police Station on
telephone. He further stated that the patient was in pains and panic
condition and could not talk fluently. He noticed that three gents and one
lady were standing in the door of the room of the patient. At that time,
the patient was still in O.P.D. i.e. the room where the doctors usually
examine the patients. He stated that he recorded the statement of the
23 APEAL 651 of 2010
patient and obtained thumb impression on her statement.
29. As per the said statement of the deceased, there was a
explosion of the stove at 8.30 hours, which resulted to total burning of her
Sari. She has sustained total burns on her person when she was getting
the milk boiled on the stove. At that time, she shouted loudly and
therefore, her in-laws ran towards her and extinguished fire by throwing
Ghongdi and water on her person. There was no sort of illtreatment to
her. There is a thumb impression on the said statement.
30. There is also an additional statement recorded on the same
day i.e. 14-06-1989, which is at page 293 of the compilation, before the
In-charge Executive Magistrate, Satara. As per said statement, on
14-06-1989, the deceased Sushma was preparing tea on stove and when
she was cleaning the stove by using pin, the kerosene came out
immediately, which resulted into explosion of fire and due to which my
cloths were burnt. It was a natural accident. The statement further states
that she did not burn herself or through anybody.
31. The prosecution has examined Mr.Vithoba Gangaram Surve
(P.W.9), who is the father of the deceased. In his evidence, he has stated
that accused No.3 used to assault, beat the deceased Sushma at the
instance of accused Nos.1, 2 and 4. He further stated that on some
occasions, Sushma was not given food and some time, she was offered
24 APEAL 651 of 2010
stale pieces of bread. The accused No.4 used to stay with her parents even
though, she was married. He and his wife requested the accused not to
assault or beat Sushma and treat her properly with love and affection and
yet illtreatment continued. The said witness has stated about the chit
written by the accused No.3 regarding the prior incident that "I will not
touch you henceforth. He stated that he used to receive threat calls from
the accused not to file any complaint. The aforesaid witness is the original
complainant.
32. In the cross-examination, he stated that he had filed the
complaint on 16-03-1989 on receiving telephonic message. He however,
denied the suggestion that he has not received any telephone message. He
admits that he had not stated in his complaint about receiving phone calls
regarding threats from the accused. He however, denied the suggestion
that the complaint is concocted. He stated that the accused No.3
demanded Godrej Cupboard, tape recorder and gas connection, after the
incident of Dettol. He has stated the same before the police at the time of
lodging complaint at Exh.67. He stated that he cannot assign any reason
as to why police did not record these facts in his complaint Exh.67. He
denied the suggestion that the photograph showing the accused No.3
receiving tape recorder is not taken at the time of marriage reception and
they have taken video film of the marriage. The complaint lodged by the
25 APEAL 651 of 2010
said witness is at Exh.67. The articles were returned back after the death
of the deceased to the parents on 24-03-1990, except gold articles, (a list
articles finds place at page 307).
33. The prosecution has lastly examined Mr.Vijay Shankarrao
Dalvi (P.W.10), who was the police officer attached to Satara Police Station
at the relevant time. He registered the case at Satara Police Station and
started investigation of the case. He further stated that at the time of
drawing panchanama, it was verified that the stove was in running
condition and he himself has started the stove and found to be in working
condition. The stove pin was kept on the upper plank of the wooden shelf.
One tin was found near the stove. He further stated that he had found one
chit below the mattress on the cot, which is mentioned in the
panchanama. He stated that the work of drawing panchanama was
finished by 2.35 p.m., and then he returned back to the police station and
received the copy of the statement recorded by the Executive Magistrate in
the police Station. The said statement is at Exh.65. He then, addressed a
letter (Exh.72) and requested him to record a fresh dying declaration of
the victim. The Clerk of the said Office, acknowledged the receipt of the
said letter on 14-06-1989. The Executive Magistrate however, refused to
record fresh dying declaration on the ground that there was no provision
under the law. The letter is produced by the said witness on record. He
26 APEAL 651 of 2010
further stated that he thereafter, went to Civil Hospital, at about 3.45 p.m.,
and met Dr.Ashtekar, narrated all the facts to him and requested him to
remain present besides the patient in the ward wherein patient was
admitted. The doctor examined the condition of the patient and told him
that the patient was fully conscious and was able to give answers to the
questions put to her. Then, he showed Articles C and D to the deceased
and she admitted that Articles C and D were written by her. He
accordingly recorded the statement of Sushma and the Medical Officer
also made his endorsement on the said statement. He further states that
on inquiry with Sushma, he was informed that in an earlier statement, she
has put thumb impression, whereas in the last statement, she put her
signature. The said witness asked Sushma (deceased) about the said
discrepancy. Sushma explained to him that at the time of previous
statement, she was in pains and in panic condition and mentally she was
not fit and therefore, she put her thumb impression in her earlier
statement. Her clarification was noted down below the statement which
is at Exh.73. Thereafter, he registered a C.R.No.257 of 1989 under
Section 498(a) of I.P.C.
34. The said witness has also stated in examination-in-chief
that one Nitin Surve produced one chit in the police Station, which carried
the date as "25-02-1989" and contents as "I will not touch your body".
27 APEAL 651 of 2010
The said witness had taken subsequent handwriting of accused No.3 in
presence of panchas. After completion of investigation, he filed a
chargesheet against the accused persons on 10-07-1989.
35. In the cross-examination, he admits that the complaint
(Exh.67) is silent on the point that Sushma was being subjected to cruelty,
harassment and illtreatment by the accused persons in order to meet their
demands of tape recorder, cupboard, gas connection. He further admitted
that it is mentioned in the panchanama that one cooker was lying near the
wooden shelf and cooked rice was found in the cooker and he tried to
verify that whether the gas was in running condition. However, the gas
could not be operated because the cylinder was empty. He however,
denied the suggestion that Sushma met with an accidental death due to
high flames of running stove and that Sushma was not being subjected to
cruelty, harassment and illtreatment at the hands of accused Nos.1 to 4.
36. Smt.Thorat, learned counsel appearing for the appellants
vehemently argued that considering the evidence on record, it can be said
that the prosecution has failed to prove the case against the accused
beyond reasonable doubt. It is submitted by her that benefit of doubt is
required to be given to the accused persons. The learned counsel further
submitted that all the witnesses are interested witnesses and therefore,
their evidence requires proper scrutiny and is required to be considered
28 APEAL 651 of 2010
with full care and circumspection. It is also submitted by her that unless
it is found that the prosecution witnesses are trustworthy, the accused
persons cannot be convicted. The learned counsel for the appellants
further submitted that the demand regarding cupboard on the face of it, is
not believable, as at the time of marriage, it was already given. She
further submitted that even from the photographs, it can be said that the
tape recorder was given at the time of marriage reception. It is submitted
that in any case, as per the say of the prosecution, even in the past, the
deceased tried to commit suicide and if it is to be believed that the accused
executed writing that "he will not touch you henceforth", then naturally
the accused would be more careful in future and would not make any
demand of any articles, or it is not possible to believe that he will continue
to harass the deceased. The learned counsel for the appellants further
submitted that as per the case of the prosecution, the deceased in the past
also tried to commit suicide and therefore, it can be safely presumed that
she was of a weak mind. She further submitted that though it is true that
as per the testimony of the handwriting expert, the suicidal note can be
said to be in the handwriting of the deceased, however, conviction straight
away cannot be recorded only on the basis of such suicidal note. The
learned counsel for the appellants submitted that since the accused No.3
was taking part in the drama, naturally he is required to come late at
29 APEAL 651 of 2010
night, and because of the same, it cannot be presumed that accused No.3
was coming late because of any illicit relationship with other lady. She
further argued that there is no direct role attributed to the father-in-law
and sister-in-law and therefore, conviction order passed against them is
not sustainable. The learned counsel further argued that the so-called last
dying declaration cannot be relied upon, as previously the deceased had
given two dying declarations stating just contrary to what she has stated in
the last dying declaration. She further submitted that the last dying
declaration recorded, cannot be said to be trustworthy dying declaration.
It is submitted by her that there is absolutely no case against appellant
Nos.1 and 4 and therefore, conviction recorded against them in any case,
is required to be set aside.
37. The learned APP for the State, on the other hand,
submitted that the prosecution has proved the case beyond reasonable
doubt and there is ample evidence on record to reach the conclusion that
the accused persons committed the offences in question as it was
established that the deceased was subjected to harassment and
illtreatment all throughout her married life. Learned APP further
contended that in any case, when there is illtreatment to the married lady,
she would naturally complain only to her parents and relatives and on the
basis of the same, if witnesses have given their evidence, such evidence
30 APEAL 651 of 2010
cannot be discarded simply because they are related to the deceased and it
cannot be said that they are interested witnesses. It is also submitted by
her that at the time of recording first two dying declarations, the deceased
was not physically and mentally fit and in fact she had put thumb
impression on it and after improvement in her health, she gave subsequent
dying declaration, which was recorded in presence of the Doctor. She
further submitted that the said fact is also corroborated by the evidence of
Doctor (P.W.2) as well as the Police Officer (P.W.10).
38. Appeal No.884 of 1990 is filed by the State Government for
enhancement of the sentence, as according to the learned APP, learned
Sessions Judge has taken lenient view in awarding sentence to the
accused.
39. We have heard the learned counsel for the appellants and
the learned APP for the State and have gone through the documentary and
oral evidence on record. So far as the evidence of Nitin Vithoba Surve (P.W.
4) is concerned, in our view, he has given absolutely natural version and
his testimony has not been shaken in the cross-examination at all. It
cannot be disputed that he was in touch with deceased sister regularly.
Even prior to the date of incident, at the instance of the deceased, he had
given his gas cylinder to the deceased. So far as the demand of tape
recorder is concerned, Mr.Nitin Surve (P.W.4) brother of the deceased, has
31 APEAL 651 of 2010
given appropriate particulars in his evidence. He has even produced bill
of tape -recorder which he has purchased for the deceased. The learned
counsel for the appellants/accused is not in a position to dispute the
aforesaid aspect that the tape-recorder was purchased. The photographs
in which the tape-recorder was presented is not a photograph of marriage
and it is not a marriage ceremony photograph.
40. Similarly, the evidence of Ms.Gita Laxman Pawar (P.W.6),
also clearly establishes that the deceased was subjected to illtreatment and
demand for dowry was made from time to time. Even in the past, the
deceased tried to commit suicide and ultimately she put end to her life
within a span of two years of married life. It is most natural that a
married daughter would complain to her parents regarding illtreatment or
harassment at the hands of her husband or in-laws. So far as the dying
declaration which was recorded in the afternoon is concerned, the same
has been signed by the deceased in the presence of the doctor (P.W.2) and
Mr.Vijay Dalvi (P.W.10). In our view, there is no reason to disbelieve the
evidence of Dr.Ashtekar (P.W.2) as well as Mr.Dalvi (P.W.10), whose version
found to be natural and trustworthy. It is required to be noted that even if
the aforesaid dying declarations are eschewed from consideration, then
also, there is overwhelming and corroborative evidence on record which
proves that the deceased was subjected to illtreatment and harassment. It
32 APEAL 651 of 2010
is also required to be noted that as per the testimony of the handwriting
expert, it is crystal clear that the suicidal note was in the handwriting of
the deceased, which was written by her on previous evening. Even the
handwriting of the husband stating that "he will not touch the deceased
henceforth" regarding the past incident, was also proved during the
evidence of the handwriting expert and signature on the said chit was
found to be of the husband/accused No.3. As per the panchanama, the
stove was found to be in a proper and working condition. The smell of
kerosene was found even on the floor, which would mean that there was a
spread of kerosene. If really the deceased has caught fire because of the
flame, there was no question of spread of kerosene and the kerosene might
have been evaporated after the passage of time. It is true that thereafter,
parents of the accused No.3 came at the spot and tried to pour water and
save the life of the deceased.
41. In our view, considering the evidence on record, the
prosecution has clearly established the case beyond reasonable doubt
against accused No.3 and the learned Additional Sessions Judge was
absolutely justified in convicting accused No.3. The learned counsel for
the appellants is also not in a position to point out as to why the deceased
was required to write suicidal note on previous evening.
42. At this stage, it would be relevant to refer the judgments on
33 APEAL 651 of 2010
which the learned counsel for the appellants and the learned APP placed
reliance to substantiate their arguments. The learned counsel for the
appellants placed reliance on a judgment of the Supreme Court in the case
of Inderpal V/s. State of M.P., (2001) 10 SCC 736, wherein it is held that
unless the statement of the deceased comes within the purview of Section
32(1) of the Act, such statement is not admissible evidence. It was further
held that unless the statement of a dead person would fall within the
purview of Section 32(1) of the Indian Evidence Act, there is no other
provision under which the same can be admitted in evidence. In order to
make the statement of a dead person admissible in law (written or verbal)
the statement must be as to the cause of her death or as to any of the
circumstances of the transactions which resulted in her death.
43. In the aforesaid case, the appellant before the Supreme
Court, was charged and tried for an offence punishable under Section 306
of the Indian Penal Code. The trial court convicted the accused under
Section 306 of the IPC. The High Court in appeal found that the offence
under Section 306 IPC was not made out as it could not be held that death
of the deceased was due to commission of suicide. Nonetheless, the High
Court proceeded to consider whether any other offence has been made out
and ultimately found the appellant guilty of the offence under Section
498-A IPC, for which no charge was framed. Considering the facts and
34 APEAL 651 of 2010
circumstances of the case, the Supreme Court allowed the appeal and
acquitted the accused.
44. Reliance is placed by the learned counsel for the appellants
on a decision of the Supreme Court in the case of Anand Kumar V/s.
State of Madhya Pradesh, (2009) 3 SCC 799, It was a case of sketchy
ocular evidence and that dying declaration recorded by the Naib Tahsildar
completely exonerated all the accused of any misconduct. However, in the
instant case, there is ample evidence on record, by which guilt of accused
No.3 can be said to have been established. Even regarding the dying
declaration, the version of the doctor (P.W.2) is absolutely natural and
even Mr.Vijay Shankarrao Dalvi (P.W.10) has clearly stated as to under
what circumstances last dying declaration was recorded by him.
45. The learned counsel for the appellants also placed reliance
on a decision of the Division Bench of this Court in the case of Amin
Pyarali Bhimjibhai Charniya and etc., V/s. State of Maharashtra, 2010
Cri.L.J. (NOC) 345 (Bom). It was held that in earlier dying declaration
deceased stated that she caught fire due to accidental blast of stove and in
subsequent dying declaration deceased implicated her husband, father-in-
law and sister-in-law. She had stated therein that on flimsy dispute she
was being assaulted by her husband, father-in-law and sister-in-law and
while the assault continued she fell down and as stove was kicked by her
35 APEAL 651 of 2010
husband, it came in contact with her. The alleged witness was turned
hostile and there was no corroborative evidence to indicate that the
subsequent dying declaration was true. In the said circumstances, it was
found that the accused was entitled to be acquitted.
46. In the instant case, as stated above, apart from the said
dying declarations, there is ample evidence on record so far as the
illtreatment and demand of various articles made by the accused No.3. In
our view, the evidence led by the prosecution is unimpeachable and the
witnesses can be said to be trustworthy witnesses who have given correct
version of incident about alleged cruelty and illtreatment to the deceased
wife.
47. The learned counsel for the appellants in order to
substantiate her say that at least conviction should not have been recorded
against appellant No.1 father-in-law and accused No.4 sister-in-law, relied
upon a decision of the Supreme Court in the case of Sakharam and Anr.
V/s. State of Maharashtra, (2003) 12 SCC 368, wherein it was held that
except vague evidence of the father of the girl and the person settling the
marriage, no evidence was brought on record to show that the appellants
demanded dowry or that they illtreated their daughter-in-law. In the said
case, accordingly, conviction recorded against father and mother-in-law
was set aside by the Supreme Court.
36 APEAL 651 of 2010
48. Learned APP in her turn, relied upon a decision of the
Supreme Court in the case of Chitresh Kumar Chopra V/s. State (Govt.
of NCT of Delhi), 2010 ALL MR (Cri) 1331 (SC). In this case, the
Supreme Court has considered the provisions of Section 306 of IPC and
after considering the said provisions, it was held that
"16. In the background of this legal position, we may advert
to the case at hand. The question as to what is the cause of
a suicide has no easy answers because suicidal ideation and
behaviours in human beings are complex and multifaceted.
Different individuals in the same situation react and behave
differently because of the personal meaning they add to
each event, thus accounting for individual vulnerability to
suicide. Each individual's suicidability pattern depends on
his inner subjective experience of mental pain, fear and loss
of self-respect. Each of these factors are crucial and
exacerbating contributor to an individual's vulnerability to
end his own life, which may either be an attempt for self-
protection or an escapism from tolerable self.
18. In the light of the material on record, in our judgment,
it cannot be said that the trial court was in error in drawing
an inference that the appellant had "instigated" the
deceased to commit suicide and therefore, there was
ground for presuming that the appellant has committed an
offence punishable under Section 306 read with Section 34
IPC. It is trite that at the stage of framing of charge, the
court is required to evaluate the material and documents on
record with a view to finding out if the facts emerging
therefrom, taken at their face value, disclose the existence
of all the ingredients constituting the alleged offence of
offences. For this limited purpose, the court may sift the
evidence as it cannot be expected even at the initial stage to
accept as gospel truth all that the prosecution states. At
this stage, the court has to consider the material only with a
view to find out if there is ground for "presuming" that the
accused has committed an offence an dot for the purpose of
arriving at the conclusion that it is not likely to lead to a
37 APEAL 651 of 2010
conviction (See Niranjan Sing Karam Singh Punjabi and
Ors. V. Jitendra Bhimraj Bijja and Ors. (1990) 4 SCC 76).
49. Learned APP has placed further reliance on a judgment of
the Supreme Court in the case of Pawan Kumar and Ors. V. State of
Haryana, AIR 1998 SC 958, wherein it was held that cruelty or
harassment need not be physical. Mental torture would be sufficient.
22. A faint submission was also made that it would not be a
case of abetment of suicide under Section306 IPC.
Reference to section 107 IPC was also made where
abetment should fall under any of the three heads.
Reliance is placed on the first head. We find that the first
head provides "instigates any person to do that things"
There is no doubt in the present case there is repeated
demand from the husband's side from the girl and her
parents for the various articles as aforesaid and on failure,
the girl was tortured, harassed by words and deeds
amounting to cruelty. AS we have held above and one day
before the fateful day, the husband saturated the mental
agony and cruelty by quarrelling with the wife (deceased)
even at her sister's place leaving no option which led the
deceased to commit suicide. This mental state is further
clear by the following words which she spoke to her sister,
"it would be difficult now to see her face in the future". In
our opinion, all this owuld constitute to be an act which
would be an abetment for the commission of the suicide by
the girl. The husband in the present case, has not led any
cogent evidence or brought any circumstances to dislodge
the aforesaid inference. Of course, benefit of doubt to the
accused would be available provided there is supportive
evidence on the record. Hence, for creating doubt or
granting benefit of doubt, the evidence was to be such
which may led to such doubt. We do not find that present
is a case where any benefit of doubt results at least against
38 APEAL 651 of 2010
the husband. There is direct evidence, as stated by the
aforesaid witnesses PWs 5 and 7 that soon before her death
she was subjected to cruelty by the husband. However, we
find in so far appellants Nos.2 and 3, father-in-law and the
mother-in-law are concerned, the evidence is of a general
nature. No convincing evidence has been led that the
deceased was subjected to cruelty by appellant Nos2 and 3.
Before holding that appellant Nos.2 and 3 had committed
the offence, it had to be found that they are responsible for
subjecting her to cruelty or harassment, soon before her
death. We find in this case evidence is only confined to the
husband and not against appellant Nos.2 and 3. Hence, on
the evidence on record, so far as appellant Nos.2 and 3 are
concerned, we extend to them the benefit of doubt and
acquit them.
50. It is required to be noted that a woman at the time of
marriage leaves her parents house, requires to go at the matrimonial
house, which is altogether a new place for her. It is expected of the
husband to take all care of his wife and even father-in-law and mother-in-
law are also expected to treat the bride as their daughter, and for all
practical purpose, the parents of the husband should treat daughter-in-law
as such their daughter. A married woman leaves the house of her parents
with a high hope that she will get such a treatment that she may not have
to remember her maternal house. The girls leaving their maternal house
with tearful eyes with the the hope that she will get love and affection in
the matrimonial house and at least, she would expect that during the good
or bad days, her husband would be at her side. The husband should
39 APEAL 651 of 2010
always be at the side of the wife and even if there is any harassment or
illtreatment on the part of the other family members, it is the duty of the
husband to protect his wife. The respective role of the husband & the wife
in such cases, is very important. Considering the evidence on record, in
our view, the prosecution has proved the case beyond reasonable doubt
against accused No.3.
51. However, so far as accused Nos.1 and 4 are concerned,
there is no direct evidence for coming to the conclusion that they were
directly involved in the act of illtreatment or cruelty. Simply because
accused No.4 at the relevant time, was residing in the parental house after
her marriage, one cannot jump to the conclusion that she is also involved
in the act of illtreatment and harassment to the deceased. The alleged
beating and demand can be said to be attributed to the husband only as
per the evidence on record. Since no satisfactory direct evidence available
regarding the role of accused No.1 and 4, in our view, the order of
conviction recorded by the learned Additional Sessions Judge against
accused Nos.1 and 4, is required to be quashed and set aside and benefit
of doubt is required to be given to them.
52. So far as the appeal No.884 of 1990 is concerned, it is filed
for enhancement of sentence of the accused. It is true as argued by the
learned APP that the learned Sessions Judge should have awarded
40 APEAL 651 of 2010
adequate sentence and the sentence which is awarded should not be very
lenient and should not be too harsh. Since the learned Sessions Judge has
exercised his discretion by awarding sentence of three years and
considering the fact that the accused No.3 is on bail since 1990 and more
than twenty years have elapsed and by this time, accused No.3 must be 52
years of age, we would not like to interfere with the discretionary order
passed by the learned Sessions Judge by enhancing the same, though we
are of the view that the learned Sessions Judge should have awarded at
least appropriate sentence which should have been more than three years.
In view of what is stated above, the appeal No.651 of 1990 is partly
allowed by quashing and setting aside the order of conviction qua
appellant/accused No.1 and 4 and the appeal is dismissed so far as
accused No.3 is concerned. The bail bonds of accused Nos.1 and 4 are
cancelled. The appeal No.884 of 1990 is also dismissed. The order of
conviction and sentence passed by the learned Sessions Judge at Satara on
10/09/1990 is hereby confirmed so far as accused No.3 is concerned. The
accused No.3 shall surrender to his bail and shall be taken in custody
forthwith to undergo the remaining sentence. Set off under Section 428 of
Cr.P.C., if any, shall be available to the accused.
53. The learned counsel for the appellants requested for some
time for surrendering. Eight weeks time is granted by which the
41 APEAL 651 of 2010
appellant/accused No.3 shall surrender to the concerned police station to
suffer remaining sentence.
( ANOOP V. MOHTA, J. ) ( P.B.MAJMUDAR, J. )
